[00:00:00] Speaker 03:
Please get ready now for our next case, 3484 Inc.

[00:00:04] Speaker 03:
versus NLRB.

[00:00:05] Speaker 03:
Numbers 24-9511 and 24-9525.

[00:00:42] Speaker 01:
Thank you, Your Honor.

[00:00:43] Speaker 01:
May it please the Court?

[00:00:45] Speaker 01:
I'm going to endeavor to save three minutes for rebuttal.

[00:00:50] Speaker 01:
The Board's order should be vacated for three reasons.

[00:00:53] Speaker 01:
One, it's not supported by substantial evidence.

[00:00:56] Speaker 01:
Two, the award of compensatory damages is in excess of the Board's statutory authority.

[00:01:02] Speaker 01:
And third, that remedy along with the Board's process violated Petitioner's constitutional rights.

[00:01:08] Speaker 01:
I'd like to begin with the remedy question first because I think it's the most straightforward.

[00:01:13] Speaker 01:
As this court previously held in CourseLab and as the Third Circuit recently held in Starbucks case, an award of compensatory damages beyond that which makes the employees whole is in excess of the board statutory authority.

[00:01:29] Speaker 01:
In CourseLab, CourseLab involved a pension fund and the board ordered the employer to pay money into that pension fund.

[00:01:40] Speaker 01:
but it did not allow an offset for money already paid into it.

[00:01:44] Speaker 01:
And in Korslav, the court held that that was beyond the board's statutory authority.

[00:01:50] Speaker 01:
And for that reason, among others, we believe that the remedy question is properly before the court.

[00:02:02] Speaker 03:
How do you say that the issue was preserved?

[00:02:06] Speaker 01:
Two responses, Your Honor.

[00:02:08] Speaker 03:
That's my question about why, that's what I meant when I said how is that properly before the court.

[00:02:13] Speaker 01:
Yes, two responses, and I'm sorry, I did not hear you before.

[00:02:19] Speaker 01:
One is because we did preserve the objections.

[00:02:23] Speaker 01:
We cited to the ALJ's order and the specific lines.

[00:02:27] Speaker 01:
In course lab, this court held that similarly and admittedly terse objections were sufficient.

[00:02:34] Speaker 01:
And we think that conclusion is particularly apt in this case because the purpose of raising the objections beforehand is so the board knows what issues are relevant.

[00:02:45] Speaker 01:
And the board is well aware of the issues with respect to its award of compensatory damages.

[00:02:51] Speaker 01:
It continues to issue those awards.

[00:02:53] Speaker 01:
It is litigating the issue across the country, including on the Third Circuit.

[00:02:57] Speaker 01:
So there's no unfair surprise.

[00:02:58] Speaker 01:
There's no question about what issues.

[00:03:00] Speaker 03:
You have several arguments you make in your brief to this court.

[00:03:04] Speaker 01:
Correct.

[00:03:05] Speaker 03:
None of those arguments were expressed in the NLRB proceedings.

[00:03:12] Speaker 03:
what you did was identify something you objected to, but the rationale behind it.

[00:03:18] Speaker 03:
Ordinarily, that's necessary for preservation.

[00:03:20] Speaker 03:
You're saying it's not necessary to explain why you're objecting?

[00:03:23] Speaker 01:
Well, CourseLab accepted similarly terse objections, and we believe that we've submitted the same.

[00:03:29] Speaker 01:
But again, the purpose of that requirement is so that the Board knows what the issues are.

[00:03:38] Speaker 01:
The issues we are raising here with respect to the remedies,

[00:03:41] Speaker 01:
are the ones that the board has addressed several times.

[00:03:45] Speaker 01:
There's no question about that.

[00:03:48] Speaker 01:
But an exception to that 10E requirement is when the board exceeds a statutory authority.

[00:03:54] Speaker 01:
And again, in course lab, this court's already held that a similar award is in excess of the board's authority.

[00:04:00] Speaker 01:
So under either rationale, we believe that the remedy question is clearly before the court.

[00:04:07] Speaker 01:
Now, the board's response is inconsistent.

[00:04:10] Speaker 01:
The board says on the one hand that there's a lot of previous cases in which the courts have confirmed that the board has the authority to issue these kinds of awards, which are public rights.

[00:04:23] Speaker 01:
But at the same time, the board says that it is now allowed to award compensatory damages, although it is trying to run away from that description.

[00:04:35] Speaker 01:
But those are private

[00:04:37] Speaker 01:
Remedies, an award of compensatory damages, consequential damages are private remedies.

[00:04:42] Speaker 01:
And so the board can't have it both ways.

[00:04:45] Speaker 01:
If it's public rights, it can order an injunction and a remedial order to make the employees whole.

[00:04:51] Speaker 01:
But it can't go beyond that without going into the private rights realm.

[00:04:56] Speaker 00:
But isn't that the key, the order to make the employee whole?

[00:04:59] Speaker 00:
Haven't we held that it's an equitable remedy and allows for things such as back pay?

[00:05:05] Speaker 01:
We're not contesting that back pay and similar items are part of the board's make whole power.

[00:05:12] Speaker 01:
But what the board did here and what it did in Thrive, the board ordered Petitioner 3486 to make the drivers whole for any loss of earnings and other benefits and for any other direct and foreseeable harms which resulting from the unlawful practice.

[00:05:30] Speaker 00:
Which have not yet been determined, is that right?

[00:05:32] Speaker 01:
That's correct.

[00:05:33] Speaker 01:
They have not been determined.

[00:05:34] Speaker 01:
But at issue in the determination will be the make-hole award and compensatory damages.

[00:05:42] Speaker 00:
Okay.

[00:05:42] Speaker 00:
So why wouldn't we then wait to see what happens?

[00:05:45] Speaker 00:
Let's say this order were to go into effect and then there's a determination as to what that means and whether the company has to make any financial payments in that sort of last category and then the challenge becomes right.

[00:06:01] Speaker 01:
Well, it's right now, we believe, because at that hearing, the court would be considering, or I'm sorry, the board would be considering whether to award make-hole and additional damages.

[00:06:10] Speaker 00:
We submit that it shouldn't... Yeah, but the board could say, well, we don't think that's either within our power to do, or we don't think that applies here, and award zero.

[00:06:18] Speaker 01:
Well, the board has already said multiple times that it is within its power to do this.

[00:06:22] Speaker 01:
But not in this case.

[00:06:23] Speaker 01:
Yes, it is.

[00:06:23] Speaker 01:
It said it's awarding, it ordered

[00:06:26] Speaker 01:
petitioner 3486 to make the employees whole and for any other direct or foreseeable harms.

[00:06:32] Speaker 00:
I guess what I'm getting at is this seems to me that it could at least be a fact of determination as to whether any of those harms are worthy of compensation, but that determination hasn't been made yet.

[00:06:42] Speaker 01:
No, but this is when we need to raise these issues.

[00:06:45] Speaker 01:
I mean, the issues before the court needs to be addressed.

[00:06:48] Speaker 01:
This was also asked that the Third Circuit and the Third Circuit agreed that it was proper to raise them at this time.

[00:06:55] Speaker 01:
And I'd like to emphasize that the Supreme Court has held, and this is in the Russell case from 1958, that back pay is merely incidental to the board's primary purpose, which is to eliminate and prevent obstructions to interstate commerce, and that the board does not have the power to issue, did not set up a scheme to award these kinds of compensatory damages.

[00:07:20] Speaker 01:
Now, I would like to discuss

[00:07:23] Speaker 01:
the record to some extent.

[00:07:25] Speaker 01:
I believe that there are a number of inconsistencies in the record, beginning with the 3484 production.

[00:07:32] Speaker 01:
Now, that's the first production.

[00:07:34] Speaker 01:
And the problem there, allegedly, is a question by a supervisor to a driver about whether the driver was aware of any union activity.

[00:07:44] Speaker 01:
The ALJ, first of all, found that the two companies were not alter egos and were not a single employer.

[00:07:50] Speaker 01:
That conclusion has not been objected to by the board.

[00:07:54] Speaker 01:
Yet, when the ALJ considered whether the question and the request to keep it confidential were coercive, the ALJ and the board considered actions from the second production.

[00:08:07] Speaker 01:
And this court has held and the NLRB has held that a single question and a single request for confidentiality do not necessarily show coercion.

[00:08:19] Speaker 01:
And so by using evidence from the second production, we believe the board, that the substantial evidence does not support that conclusion.

[00:08:29] Speaker 03:
You're talking about the Canady case?

[00:08:31] Speaker 01:
I'm sorry, Canady, yes.

[00:08:33] Speaker 01:
And the NLRB case is Lafayette Park Hotel, where it said that

[00:08:36] Speaker 01:
A single request to keep things confidential is not necessarily coercive.

[00:08:41] Speaker 03:
We said it wasn't coercive.

[00:08:43] Speaker 01:
I'm sorry?

[00:08:43] Speaker 03:
I think our language was more definitive than not necessarily said it wasn't coercive.

[00:08:50] Speaker 01:
It said not all interrogations are illegal.

[00:08:54] Speaker 03:
And this one wasn't because it was just a single question.

[00:08:57] Speaker 01:
That's correct.

[00:08:59] Speaker 03:
What about the request or order to keep this quiet?

[00:09:05] Speaker 01:
Same response.

[00:09:07] Speaker 01:
One request does not necessarily make it coercive.

[00:09:11] Speaker 03:
But that's not required for the second violation.

[00:09:21] Speaker 03:
It doesn't have to be coercive.

[00:09:23] Speaker 03:
It's just any effort to keep things secret violates the NLRA.

[00:09:28] Speaker 01:
No, that's not correct.

[00:09:29] Speaker 03:
And this is the language of that.

[00:09:31] Speaker 01:
The Lafayette Park Hotel, which is an NLRA decision from 1998, said that a confidentiality request are not necessarily coercive and therefore not necessarily violative of the act.

[00:09:45] Speaker 00:
Is a part of that analysis, though, whether there's a business justification for the confidentiality request?

[00:09:50] Speaker 00:
And if so, what was the justification here?

[00:09:52] Speaker 01:
Well, because of the timing of these things.

[00:09:56] Speaker 01:
The movie productions are, in these cases, are done over a matter of weeks.

[00:10:01] Speaker 01:
Things need to be done.

[00:10:03] Speaker 01:
If the movie production needs to hire additional drivers, it needs to know that in advance.

[00:10:10] Speaker 01:
And again, it was just a simple question and a request for confidentiality.

[00:10:14] Speaker ?:
Sure.

[00:10:14] Speaker 00:
That may be why you would say it wasn't an interrogation.

[00:10:18] Speaker 00:
She just wants to know whether there's union activity.

[00:10:21] Speaker 00:
But saying, hey, don't share with anyone that I'm even asking these questions, that seems different to me.

[00:10:26] Speaker 00:
What's the justification for that specific order?

[00:10:30] Speaker 01:
I think it's the same thing.

[00:10:31] Speaker 01:
I'm just looking for information.

[00:10:32] Speaker 01:
Please keep it quiet.

[00:10:33] Speaker 01:
I'm just thinking about what the company needs to do in this situation.

[00:10:37] Speaker 01:
Evidence that it's not going to be coercive is that this driver was hired for the second production

[00:10:44] Speaker 01:
She voted to go on strike, and she went on strike.

[00:10:48] Speaker 01:
With respect to the second production, this involves the threat.

[00:10:51] Speaker 03:
Well, it doesn't have to be effective to be coerced.

[00:10:54] Speaker 01:
That's right, but I'm just saying the evidence in the record shows that she was not coerced.

[00:10:59] Speaker 01:
And so I don't think there's any other evidence that would tend to show coercion in this case.

[00:11:05] Speaker 03:
I'm checking your reply brief because I don't remember your responding to the

[00:11:15] Speaker 03:
in LRB's argument in its answer brief that there was still a problem with the request to keep things confidential.

[00:11:26] Speaker 03:
Did you respond to that in your reply brief?

[00:11:29] Speaker 01:
I thought we did, but I won't defer to the courts.

[00:11:36] Speaker 01:
With respect to the second production, again this involves the threat

[00:11:39] Speaker 01:
Again, another alleged interrogation and the failure to reinstate.

[00:11:46] Speaker 01:
The threat we think that there is sufficient evidence to show that the driving coordinator in that case did not have the kind of discretion that the board found.

[00:11:56] Speaker 01:
And as evidence of that, the ALJ, in a separate part of his opinion, said that the owner, Wolf, ran a top-down dictatorship.

[00:12:06] Speaker 01:
And that's in the record, 17 and 818.

[00:12:08] Speaker 01:
I think that contradicts what the board concluded about the coordinator's ability to control things.

[00:12:16] Speaker 01:
Also, with respect to the equipment, I think that there were two big problems with the board's conclusion with respect to the stealing of the equipment.

[00:12:25] Speaker 01:
The board said, well, they knew the union and the drivers knew that they had to take good care of the equipment.

[00:12:31] Speaker 01:
But that's irrelevant.

[00:12:33] Speaker 01:
The equipment was rented or owned by the movie companies or by Wolf or one of his other companies.

[00:12:39] Speaker 01:
And so the union and the drivers had no right to take it in the first place.

[00:12:43] Speaker 01:
It would be like if the movie companies had rented a building and the crew went on strike and occupied the building.

[00:12:51] Speaker 00:
They're not allowed to do it.

[00:12:53] Speaker 00:
But doesn't it require individualized good faith or honest belief that specific individuals engage in certain conduct?

[00:13:02] Speaker 00:
And so my understanding is there are about 12 drivers, and sort of all the equipment was taken.

[00:13:07] Speaker 00:
So is the inference that they all had to participate because it was taken, or did you anywhere in the record bring forward specific evidence by name driver?

[00:13:16] Speaker 01:
No, but the ALJ, again, this is the ALJs.

[00:13:19] Speaker 01:
This is from record 831.

[00:13:20] Speaker 01:
The ALJ found that all nine drivers

[00:13:24] Speaker 01:
were entitled to reinstatement because they all engaged in picketing, and they were all engaged in moving the vehicles and the equipment.

[00:13:31] Speaker 01:
So I don't think there's any question about which drivers.

[00:13:34] Speaker 01:
They were all involved.

[00:13:36] Speaker 01:
Not only did Wolf have an honest belief, he had to go to the hotel where the drivers were staying to recover his personal property.

[00:13:43] Speaker 01:
The property was stolen.

[00:13:44] Speaker 01:
There was no question about that.

[00:13:47] Speaker 01:
I see only about two minutes left, and I'd like to reserve the rest for a bottle please.

[00:13:51] Speaker 01:
Thank you.

[00:14:05] Speaker 02:
Good morning, may it please the court?

[00:14:06] Speaker 02:
Eric Weitz on behalf of the National Labor Relations Board.

[00:14:09] Speaker 02:
I'd like to begin on the Thrive Remedy and in particular on the Threshold Jurisdictional Question pursuant to Section 10E of the Act.

[00:14:19] Speaker 02:
This is a case where the employers did not raise any argument or present any of the arguments they're not making to the board.

[00:14:28] Speaker 02:
What they did do in their exceptions document was to include rote exceptions to nearly every remedy

[00:14:34] Speaker 02:
The exact quote in objecting to the Thrive Remedy was that they were objecting based on the record and the supporting brief.

[00:14:41] Speaker 02:
If you then turn to the supporting brief, which we've lodged with the court, they made no challenge to the Thrive Remedy whatsoever.

[00:14:49] Speaker 02:
To the contrary, the brief was written as to suggest that what their argument was was that they were objecting to the unfair labor practice findings, and as a result, no order and no remedy was warranted.

[00:15:02] Speaker 02:
But at no point did they suggest that the Thrive Remedy exceeded the board's authority, that it violated the Seventh Amendment, that it was inconsistent with Section 10C of the Act, or any of the other broad arguments they now present.

[00:15:15] Speaker 02:
In CoorsLab, which opposing counsel has referenced, this court distinguished the Supreme Court's opinion in the 7-up bottling case, noting that that was an example of a terse objection that was insufficient.

[00:15:29] Speaker 02:
And if the court looks at what was that issue in 7-Up, the language there was nearly identical to what occurred here.

[00:15:35] Speaker 02:
An employer had objected solely based on a rote recitation that the record and the law do not support this remedy, and the Supreme Court held that is insufficient to preserve an issue for the board's consideration.

[00:15:50] Speaker 02:
This court distinguished those facts.

[00:15:52] Speaker 02:
Those facts were very different.

[00:15:54] Speaker 02:
The board had awarded a particular kind of relief unique to that case based on the facts.

[00:16:00] Speaker 02:
The employers specifically identified that they disagreed that that remedy was warranted and in detail identified what they were objecting to.

[00:16:11] Speaker 02:
And although they didn't include, you know, extensive legal arguments, the board was clearly on notice that the employer was objecting to it.

[00:16:19] Speaker 02:
This is even further removed or even more unjust to the board than 7-up because in the supporting brief, not only did they not make arguments, they actually misled the board into thinking that their objection was based on the ULPs and that no remedy was warranted.

[00:16:36] Speaker 02:
And so this is a straightforward case where the issue was not raised.

[00:16:40] Speaker 02:
As to the extraordinary circumstances exception, which this court and course lab noted in a footnote without actually applying, I'm not aware of any instance of this court ever applying that exception, but some courts have looked to dicta from the Supreme Court's opinion in the Cheney Lumber case to hold that in certain circumstances where the board has clearly or patently traveled outside the orbit of its statutory authority,

[00:17:06] Speaker 02:
a court can deem that an extraordinary circumstance.

[00:17:10] Speaker 02:
But that is a very limited exception.

[00:17:13] Speaker 02:
I would point the court to the A Circuit's discussion of this in the Relco Locomotives case, which I think is very persuasive and illustrative, where the A Circuit explained that there is this exception, but it is truly reserved for extraordinary circumstances, where, for example, the board clearly should have known that it was doing something beyond its authority.

[00:17:35] Speaker 02:
such as where you had in-circuit precedent that had already clearly foreclosed a certain type of board action.

[00:17:42] Speaker 02:
The interpretation of that exception that the employers are now suggesting in their reply brief, which is any argument that alleges the board exceeded a statutory authority is now an extraordinary circumstance, would swallow the rule and the intent of Congress in enacting Section 10E.

[00:18:01] Speaker 02:
Because in most cases where a party is challenging a board remedy,

[00:18:05] Speaker 02:
Given the board's broad remedial discretion, the argument is that the board exceeded the discretion it has under Section 10C.

[00:18:13] Speaker 02:
In many cases, arguments that employers are raising to board decisions are based on a claim that the board somehow exceeded its discretion.

[00:18:22] Speaker 02:
And to say that in all of those cases, that is now an extraordinary circumstance, would run roughshod over Section 10E and would allow employers, as occurred in this case,

[00:18:33] Speaker 02:
to simply selectively and strategically not make any objections to the board and then plan to litigate an issue in the first instance before a court of appeals, which is not what Congress intended in enacting Section 10E, which is a jurisdictional requirement, as this court held in Public Service Company of New Mexico.

[00:18:52] Speaker 02:
And this is a classic case where the issue is not properly before the court.

[00:18:58] Speaker 02:
Turning briefly just to the merits of the remedy, although of course our position is the court has no reason to reach them.

[00:19:06] Speaker 02:
The opposing counsel mentioned CourseLab as supporting their position.

[00:19:10] Speaker 02:
I actually think it does the exact opposite.

[00:19:12] Speaker 02:
In course lab, this court held that the board had exceeded its authority because it had included a remedy that essentially, in the court's view, allowed employees to collect twice, to receive a windfall.

[00:19:25] Speaker 02:
And the court's reasoning, which is consistent with 90 years of Supreme Court and Court of Appeals precedent, is that the objective of the act, the policy of the act, is to make employees whole and to restore the status quo ante.

[00:19:39] Speaker 02:
In course lab, this court held that the board's remedy had gone beyond that.

[00:19:43] Speaker 02:
But the remedy being challenged here, the Thrive Remedy, is by its terms limited to making employees whole for concrete pecuniary harms that are fully litigated and proven in a compliance proceeding to have been caused by an unfair labor practice.

[00:19:59] Speaker 02:
It's a classic instance of restoring the status quo ante.

[00:20:03] Speaker 02:
As the board explained in Thrive, this is not a new remedy.

[00:20:07] Speaker 02:
For 90 years, it has done this on an ad hoc basis, and the only innovation in Thrive was to say now as a standard remedy, every time we include a MAKLE order, we're going to use this particular language.

[00:20:20] Speaker 02:
But it was not expanding

[00:20:21] Speaker 02:
the board's remedies into any form of private damages.

[00:20:25] Speaker 02:
It was not going beyond making employees whole or restoring the status quo ante.

[00:20:30] Speaker 02:
It is limited to the core remedial objective of the act, which the Supreme Court has recognized in those terms for 90 years.

[00:20:40] Speaker 02:
As for the Russell case, which the employers are also relying on, again, I would just direct the court to that case, which I would submit also supports the board's position here.

[00:20:51] Speaker 02:
In that case, the Supreme Court was facing the question of, does the National Labor Relations Act supplant private rights of actions and tort claims in state law that employees might have?

[00:21:03] Speaker 02:
And the Supreme Court held no.

[00:21:05] Speaker 02:
The purpose of the National Labor Relations Act was to establish an agency

[00:21:10] Speaker 02:
to enforce the public rights enshrined in the Act.

[00:21:13] Speaker 02:
It is not to provide damages to individual employees.

[00:21:17] Speaker 02:
It is not to adjudicate private rights.

[00:21:20] Speaker 02:
It is to determine what is necessary to further the policies of the Act.

[00:21:26] Speaker 02:
And that's where the Supreme Court suggested in passing in dicta

[00:21:31] Speaker 02:
or language that's essentially dicta, that the purpose of the board is not to provide compensatory damages to employees.

[00:21:39] Speaker 02:
But in context, what the court is getting at is that the board is an agency that adjudicates public rights.

[00:21:46] Speaker 02:
That's what its remedies are aimed at effectuating, not private damages.

[00:21:50] Speaker 02:
And that the question, which again the Supreme Court has held for 90 years, the standard of review, is when someone is challenging a board remedy,

[00:22:01] Speaker 02:
Is that remedy a patent attempt to achieve ends other than those that effectuate the policies of the Act?

[00:22:07] Speaker 02:
The Supreme Court and lower courts have on many occasions struck down board remedies, but it was based in situations where the board had gone beyond restoring the status quo entity and beyond making employees whole.

[00:22:21] Speaker 02:
It had nothing to do with this common law equitable distinction that the employer is attempting to insert into Section 10C of the Act, although on that point,

[00:22:31] Speaker 02:
I'd like to be clear that the remedy here is properly deemed equitable.

[00:22:35] Speaker 02:
We are not claiming that under section 10C, the board necessarily has the authority to issue legal damages or any kind of legal remedy.

[00:22:46] Speaker 02:
Our objection as to that statutory argument is simply that is not detest under section 10C.

[00:22:52] Speaker 02:
In board cases, the courts do not need to determine on a case by case basis, is this something a court of equity did

[00:22:59] Speaker 02:
in the 18th century.

[00:23:00] Speaker 02:
Rather, the Supreme Court has already held.

[00:23:03] Speaker 02:
The question is, is it something that goes beyond effectuating the policies of the act?

[00:23:08] Speaker 02:
And I would submit that the Thrive Remedy.

[00:23:12] Speaker 03:
Finish briefly, I'd like to get to whether there were any violations.

[00:23:17] Speaker 02:
Sure.

[00:23:17] Speaker 02:
I'll just finish briefly noting that I would submit the Thrive Remedy is clearly within the core of the board's policy objective, which is to restore the status quo ante.

[00:23:29] Speaker 03:
Could we turn to the unfair labor practice?

[00:23:32] Speaker 02:
Please, Your Honor, sure.

[00:23:33] Speaker 03:
So let me focus first on 3484 first.

[00:23:40] Speaker 03:
How did the question about whether there was union activity, how did that differ from the question in Kennedy?

[00:23:50] Speaker 03:
It looks to me like Kennedy controls.

[00:23:52] Speaker 03:
Maybe Kennedy was wrong, but it's controlling.

[00:23:56] Speaker 03:
Can you reconcile the determination that that question was an unfair labor practice with Kennedy?

[00:24:03] Speaker 02:
Sure, Your Honor.

[00:24:04] Speaker 02:
Well, I'd preface my answer by noting that this area of law, the question of unlawful interrogation, is a totality of circumstances test.

[00:24:12] Speaker 02:
It's a case by case, fact specific analysis.

[00:24:16] Speaker 02:
So the board has to weigh different facts on each case.

[00:24:19] Speaker 02:
And Kennedy, this court, denied enforcement of the board's unfair labor practice finding

[00:24:24] Speaker 02:
in a very terse opinion, I believe it's essentially one sentence in that opinion.

[00:24:28] Speaker 02:
So not all of the contours, the factual framework of that case are necessarily explained.

[00:24:36] Speaker 03:
I think... Well, but doesn't that mean that it found just the fact that it was just that one question won't do it?

[00:24:44] Speaker 03:
It seems to me that it's stronger because it didn't worry about other potential factors.

[00:24:50] Speaker 03:
So that one question is not going to coerce anybody.

[00:24:53] Speaker 02:
Well, I don't know that the court wasn't worrying about it.

[00:24:56] Speaker 02:
I think they were reviewing all of the detailed facts of that case.

[00:24:59] Speaker 02:
And in their opinion, they didn't get into them.

[00:25:02] Speaker 03:
Sometimes that means the facts they recite in their reasoning are all the facts they consider relevant to the determination.

[00:25:11] Speaker 03:
And that's the precedent that was set there.

[00:25:13] Speaker 02:
Sure, Your Honor, but I don't think Kennedy can be read as a per se rule that any time you have a single question, that that can't be an interrogation.

[00:25:21] Speaker 02:
In the YMCA case, for example, another decision from this court, again, those facts differ in certain ways.

[00:25:28] Speaker 02:
But that was a situation where you had a single instance of questioning about the union.

[00:25:32] Speaker 03:
Single incidence of question, but it was more than one question, wasn't it?

[00:25:38] Speaker 03:
Yes, Your Honor, although I mean, the one question that was

[00:25:42] Speaker 03:
reference in Kennedy, I find hard to distinguish from the one question here.

[00:25:50] Speaker 02:
Well, Your Honor, I think the distinction, for example, is that the circumstances of the question here were very different.

[00:25:57] Speaker 02:
You had a situation here where the highest level supervisor in charge of day-to-day production

[00:26:03] Speaker 02:
singled out a low-level employee, called them after hours on their personal cell phone in a sort of surreptitious way, which is similar to situations this court has found supports coercion, such as locking a door or contacting an employee after work.

[00:26:19] Speaker 02:
It suggested that this was somehow some kind of surreptitious inquiry or needed to be kept under wraps.

[00:26:27] Speaker 02:
It came in the context, again, which I think is important in this case,

[00:26:32] Speaker 02:
a course of conduct over several weeks involving all of the same individuals.

[00:26:37] Speaker 02:
David Wolf, film productions, Ms.

[00:26:40] Speaker 02:
Ricci, the same manager, the same drivers.

[00:26:43] Speaker 02:
Granted, it was across two different film productions, but it occurred in very short order.

[00:26:47] Speaker 00:
Well, Counselor, can you help me understand on the record, because I don't make films and hire a lot of labor to assist with that, but it seems to me that that's an extensive project.

[00:26:59] Speaker 00:
It requires a lot of time, planning, and resources.

[00:27:02] Speaker 00:
And here, my understanding is the drivers were going to be needed for a relatively short time frame, for 15 days.

[00:27:10] Speaker 00:
But yet, on the 3486 shoot, they approach Mr. Wolf basically on the eve of shooting the film.

[00:27:18] Speaker 00:
And it seems very tactical on their part to come at him at a time where his attention is going to be elsewhere.

[00:27:27] Speaker 00:
Looking at the record, then, is we're looking at a number of these determinations for substantial evidence.

[00:27:31] Speaker 00:
How does that factor in?

[00:27:33] Speaker 00:
If we're trying to determine what motivated their strike, for example, you know, they say, well, it was a ULP strike, but it seems also pretty clear that it was an economic strike and they were using the ULP as leverage.

[00:27:44] Speaker 00:
And how much credibility can we give to them when we look at the record and, again, what I call a tactical advantage they were trying to gain with the timing of all this?

[00:27:52] Speaker 02:
Well, I think the timing points in both directions, Your Honor, because just to briefly go through the timeline here, it's true that the union approached Wolf Productions on the eve of filming.

[00:28:02] Speaker 02:
And Mr. Wolf may have a valid objection to that.

[00:28:05] Speaker 02:
That is not the basis for the board's order.

[00:28:08] Speaker 02:
What is the basis for the board's order is after the union did so, and he was upset by it, his deputized agent threatened the employees that if they continued with these attempts to organize, production was going to move to Canada.

[00:28:22] Speaker 02:
That occurred immediately after they reached out to him.

[00:28:26] Speaker 02:
And soon after that... Is that a hollow threat?

[00:28:28] Speaker 00:
I mean, they're all on set.

[00:28:30] Speaker 00:
They're ready to shoot.

[00:28:31] Speaker 00:
I mean, it's hard for us to read the record and kind of have an understanding of that, at least it is for me.

[00:28:36] Speaker 02:
I think a relevant consideration, Your Honor, is that all of the parties here are repeat players, so when that threat is made, that Hallmark Productions, the client who is a recurring client of Mr. Wolfe, these drivers who currently work on these same film productions in Utah,

[00:28:53] Speaker 02:
that if they try to organize, all of film production is going to move to Canada.

[00:28:58] Speaker 02:
That is clearly a threat to their continued livelihood as film industry drivers in Utah.

[00:29:05] Speaker 02:
And I don't think it's a hollow threat at all.

[00:29:07] Speaker 02:
I think it's one of the most coercive threats you can make to an employee.

[00:29:11] Speaker 02:
And so it's true that they reached out to him on the eve of filming.

[00:29:14] Speaker 02:
Whether that's good manners or legitimate or not is not really relevant.

[00:29:19] Speaker 02:
What's relevant is that in response,

[00:29:21] Speaker 02:
this hallmark unfair labor practice was committed.

[00:29:24] Speaker 02:
And all of the record evidence shows that, at least in part, in response to that unfair labor practice, the employees chose to go out and strike to protest with the hope being that Mr. Wolf would stop threatening them and he would recognize them and negotiate a contract.

[00:29:39] Speaker 02:
That's obviously their long-term goal, just like any employees who are trying to unionize.

[00:29:43] Speaker 02:
But it's a very lenient test.

[00:29:45] Speaker 02:
Was an unfair labor practice at least part of the motivation?

[00:29:49] Speaker 02:
And I see that I'm over time, so unless there's any... There are further questions.

[00:29:53] Speaker 02:
Sure, Your Honor.

[00:29:56] Speaker 03:
What about the argument made by the employer in its first argument regarding the evidence of misconduct in damaging the equipment of the company and how that could justify what the company did?

[00:30:16] Speaker 03:
How do you respond to those arguments?

[00:30:18] Speaker 02:
Well, I think there's two sort of intertwined arguments.

[00:30:21] Speaker 02:
Before the board, the employer argued that employees had actually vandalized equipment and intentionally damaged it.

[00:30:29] Speaker 02:
The board held or found that there was no evidence whatsoever

[00:30:34] Speaker 02:
number one, that particular employees did so, or number two, that the employer even believed that they had anything to do with the strike.

[00:30:41] Speaker 02:
And on review, I don't read the employer's briefs as pursuing that argument.

[00:30:46] Speaker 02:
There's one stray reference to equipment damage.

[00:30:49] Speaker 02:
They do not contest that finding by the board.

[00:30:51] Speaker 02:
On review, they make a different argument, which is that the employees should be denied reinstatement because they moved some of the leased vehicles.

[00:31:01] Speaker 02:
Number one, I think it's debatable, Your Honor.

[00:31:06] Speaker 02:
We haven't pressed the Section 10e argument as to that, but they clearly that was not the main argument they were presenting to the board, whether they incidentally preserved it, maybe.

[00:31:18] Speaker 02:
But I think it's not a compelling argument because the test here under clear pine moldings and this course precedent applying clear pine moldings is that employees have to have engaged in serious misconduct that actually coerces dissenting employees who want to cross the picket line.

[00:31:36] Speaker 02:
So traditionally that is picket line violence.

[00:31:39] Speaker 02:
It could include property damage, but it's not simply being disobedient to the employer.

[00:31:44] Speaker 02:
And what happened here is not even really misconduct because the employers are alleging that this was somehow theft or interference with their property rights.

[00:31:53] Speaker 02:
But I would emphasize, number one, that the employees and the union actually contacted all of the property owners.

[00:32:01] Speaker 02:
They did not move any of the several vehicles owned by David Wolf.

[00:32:05] Speaker 02:
As for the leased vehicles, they contacted the actual owners

[00:32:09] Speaker 02:
to make sure that those owners wanted the vehicles moved to safety and they received consent.

[00:32:15] Speaker 02:
And in addition, while all of this was going on, all of the managers and supervisors for Wolf Productions were on site and they tacitly signed off on it, or at a minimum they did not object.

[00:32:28] Speaker 02:
They watched it going on and they said, do what you need to do.

[00:32:31] Speaker 02:
And there was no attempt to prevent the employees from doing this, which again was entirely in good faith to prevent damage to the vehicles.

[00:32:40] Speaker 01:
Thank you any other questions Thank you Thank you with respect to the the last point about the the union members and employees calling the owners of the equipment Again, if they if the movie company had rented a building

[00:33:01] Speaker 01:
And the crew went on strike and took control of the building.

[00:33:04] Speaker 01:
And they called the owner and said, do you mind if we take control of the building?

[00:33:07] Speaker 01:
It's irrelevant.

[00:33:08] Speaker 01:
The equipment and the trucks were in the lawful possession of Wolf.

[00:33:12] Speaker 01:
They were stolen.

[00:33:13] Speaker 01:
There's no question about it.

[00:33:14] Speaker 01:
The union can't change that by getting consent from the party that leased them.

[00:33:19] Speaker 01:
They no longer had physical control or legal title to the equipment and trucks while that was going on.

[00:33:29] Speaker 01:
the arguments about public rights.

[00:33:31] Speaker 01:
In Jarkosi, the Supreme Court clarified what public rights were.

[00:33:35] Speaker 01:
It was a specific list of things like immigration, public lands.

[00:33:39] Speaker 01:
It did not include NLRB actions.

[00:33:42] Speaker 01:
So we believe that the public rights analysis does not support the Board's decision here.

[00:33:48] Speaker 01:
Further, my friend is correct that the courts have held

[00:33:53] Speaker 01:
in certain circumstances that, or they've overruled what the board has done in terms of exceeding its statutory authority by awarding things that do more than make the employees whole.

[00:34:06] Speaker 01:
But that's the crux.

[00:34:08] Speaker 01:
The point is to restore the status quo ante.

[00:34:12] Speaker 01:
Damages beyond that are separate and beyond the board's authority.

[00:34:16] Speaker 01:
And again, I'd reiterate, the board's order here says that the employer must make the employees whole

[00:34:22] Speaker 01:
and award relief for direct and foreseeable harms.

[00:34:28] Speaker 01:
Those are consequential damages and that is beyond the Board's power.

[00:34:35] Speaker 01:
Course lab again held that the Board exceeded its statutory authority by requiring money to be put in a pension fund beyond that

[00:34:44] Speaker 01:
which had already been deposited.

[00:34:46] Speaker 01:
So the same thing here.

[00:34:48] Speaker 01:
If the court agrees that there are UOPs and if the court agrees that a make-hole order makes sense, that's fine.

[00:34:55] Speaker 01:
But damages, we believe, are beyond the court's authority or the board's authority, excuse me.

[00:35:01] Speaker 03:
You don't have to use all the time I gave you.

[00:35:04] Speaker 01:
No, I understand.

[00:35:04] Speaker 01:
I just want to make sure I've got everything.

[00:35:09] Speaker 01:
I'd like to make one point about the threat.

[00:35:11] Speaker 01:
There's no evidence in the record, and this goes to Judge Federico's question about the nature of the threat and whether the strike was ULP or economic.

[00:35:22] Speaker 01:
There's no evidence in the record that the drivers other than Brewer knew about the threat.

[00:35:27] Speaker 01:
The record shows that the union members discussed, said to the drivers, there had been ULPs.

[00:35:34] Speaker 01:
But that's it.

[00:35:34] Speaker 01:
The record doesn't say what the nature of the ULPs were, whether the drivers were aware of anything.

[00:35:40] Speaker 01:
So we think that's also the court should take that into consideration.

[00:35:44] Speaker 00:
Can you actually help me understand again just the record?

[00:35:49] Speaker 00:
Three days before the shoot, they come to Mr. Wolfe with an email and say, we'd like to talk about a new contract.

[00:35:55] Speaker 00:
Again, I frame that as being, I think, maybe tactical.

[00:35:59] Speaker 00:
At least you could read the record that way.

[00:36:01] Speaker 00:
But also just

[00:36:03] Speaker 00:
They're asking for things like health benefits and retirement, but this is such a short time frame.

[00:36:08] Speaker 00:
Can you help me understand how that works in practice?

[00:36:11] Speaker 00:
Let's say they sign the contract.

[00:36:12] Speaker 00:
Would that carry on to the next project or is that paid by the union?

[00:36:15] Speaker 01:
No, that would just be for each individual production.

[00:36:19] Speaker 01:
That's how the practice and the injuries in the industry

[00:36:23] Speaker 01:
is that each film gets its own entity, so the contract would be between the union and the specific entity.

[00:36:30] Speaker 00:
And that would carry on to the next project.

[00:36:32] Speaker 01:
It would not.

[00:36:32] Speaker 01:
It would not.

[00:36:33] Speaker 01:
It would not.

[00:36:33] Speaker 01:
It would just be for that particular shoot.

[00:36:37] Speaker 01:
Now, I suppose they could agree to it, but I think the standard is they want to keep everything lined up so that any issues with a particular film won't affect a future production.

[00:36:50] Speaker 01:
And one last point on that.

[00:36:53] Speaker 01:
There is an email from the union representative after the ULP allegedly was committed and she sends an email to Wolf and it said all this is about is getting a contract for the workers.

[00:37:06] Speaker 01:
This is nothing more than an effort to get a contract for the workers.

[00:37:09] Speaker 01:
We submit this was an economic strike.

[00:37:11] Speaker 01:
And if there are no other questions, thank the court for its time.

[00:37:17] Speaker 03:
Thank you, counsel.

[00:37:18] Speaker 03:
Case is submitted and counsel are excused.